Today’s reported contempt proceedings in the Supreme Court of Victoria do not (yet) involve the High Court. Rather, they concern an ongoing appeal in Victoria’s Court of Appeal by the Commonwealth Director of Public Prosecutions against a ten year sentence imposed on convicted terrorist Sevdet Besim by the Supreme Court. However, the issues are closely tied to several past High Court decisions.
One is a ruling in late 2015 allowing a Cth DPP sentencing appeal in a federal drugs matter, where the High Court unanimously held that:
to prefer one State’s sentencing practices to sentencing practices elsewhere in the Commonwealth, or at least to prefer them for no more reason than that they are different, is contrary to principle, tends to exacerbate inconsistency and so ultimately is unfair.
This ruling almost certainly is the background for reported comments by judges hearing the DPP’s appeal that, the case of terror sentences:
Warren CJ: “NSW courts appeared to put less weight on the personal circumstances of the offender than Victorian courts, with greater concern for denouncing the crime and sending a message to others in the community. It’s as if the Murray River is an enormous gap in terms of sentencing.”
Weinberg JA: “The range seems to be in the 20s [years] for offending somewhat similar to this. It is extremely worrying, I would have thought, that there is such a gap.”
Just as in the 2015 case, the difficulty faced by the judges is that Victorian courts consistently gave lower sentences than other states, notably NSW. The High Court has made it clear that Victoria should generally follow the national approach, rather than its own one.
The other High Court rulings in play today are ones concerning the common law offence of scandalizing the court. In its early years, the High Court confined that offence in an appeal involving an Argus editorial sarcastically complaining of future Court member Higgins J’s ignorance of the ‘slow down’ tactic in industrial relations. The Court quashed the conviction, holding that ‘It is difficult indeed to believe that any such comment would sap or undermine the authority of any Court in the mind of any reasonable person.’ But that changed in 1935, when the Court exercised its own power to hold the Sun in contempt for complaining that the High Court had ruined the White Australia Policy by ‘keen legal intelligences… to the horror of everybody except the Little Brothers of Soviet and kindred intelligentsia’ and for criticisms of the Court’s rulings on sales taxes and judicial power. And that trend continued in 1983 when the Court upheld a finding that Builders Labourers Federation head Norm Gallagher committed contempt when he attributed his successful appeal of an earlier contempt charge (including the finding of future High Court judge Deane J) ‘to the rank and file of the Federation whose significant stand, alongside their elected representatives, is the key to the reversal’. The majority observed:
The authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges. However, in many cases, the good sense of the community will be a sufficient safeguard against the scandalous disparagement of a court or judge, and the summary remedy of fine or imprisonment is applied only where the Court is satisfied that it is necessary in the interests of the ordered and fearless administration of justice and where the attacks are unwarrantable.
This, then, is the test that is to be applied to the statements published by The Australian, which described them as ‘responses’ to the remarks of Warren CJ and Weinberg J:
Federal Health Minister Greg Hunt: “Comments by senior members of the Victorian courts endorsing and embracing shorter sentences for terrorism offences are deeply concerning — deeply concerning. The Andrews government should immediately reject such statements and sentiments. The state courts should not be places for ideological experiments in the face of global and local threats from Islamic extremism that has led to such tragic losses.”
Federal Assistant Treasurer Michael Sukkar: “Labor’s continued appointment of hard-left activist judges has come back to bite Victorians. Our judiciary should focus more on victims and the safety of our society, and less on the rights of terrorists who don’t respect our society, its laws or our people. This government can put up the best laws in the world but our efforts are undermined unless the courts use them for the purpose (for which) they were designed — as a penalty for acts of terrorism and a deterrent for those that might be planning them…. Most Australians would think as a principle that serious offenders should serve a sentence for every crime for which they are convicted, but not effectively reduced at the same time. In the US, they are happy to give them multiple life sentences … they can be effectively jailed for several hundred years.”
Human Services Minister Alan Tudge: “Some of these judges are divorced from reality. We have a crisis on our hands with people who want to kill indiscriminately and yet some judges seem more concerned about the terrorists than the safety of the community.”
Ominously for the three federal ministers, the High Court in 1983 also held that the Federal Court rightly opted to imprison Gallagher by taking into account that he would not personally pay any fine imposed.
Also possibly playing a background role is Murphy J’s famous dissent in the Gallagher case, where excoriated his judicial siblings’ stance:
As stated by this Court, the law of criminal contempt in scandalizing the courts is so vague and general that it is an oppressive limitation on free speech. No free society should accept such censorship… At stake is not merely the freedom of one person; it is the freedom of everyone to comment rightly or wrongly on the decisions of the courts in a way that does not constitute a clear and present danger to the administration of justice.
Arguing that the Court’s 1935 decision ‘had a chilling effect on public criticism of courts in Australia [that] persisted for about four decades’, he said that Australia should adopt the approach taken in the USA and England, where ‘Judges’ backs have got to be a good deal broader than they were thought to be years ago. Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them.’ He also attacked the contempt jurisdiction for a litany of procedural sins, including the unlimited punishments available and the absence of trial by jury. The Gallagher decision notably predated the High Court’s finding of an implied freedom of political communication in the Constitution, but Mason CJ nevertheless upheld the scandalizing offence in 1992, albeit emphasizing the stance of the United States Supreme Court that:
The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. … an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.
Today’s proceedings are an opportunity to test whether similar things can be said about the character of Australian public opinion.